Covert v. Randles, Civil 4044
| Decision Date | 27 February 1939 |
| Docket Number | Civil 4044 |
| Citation | 53 Ariz. 225,87 P.2d 488 |
| Parties | NELLIE P. COVERT, Appellant, v. JAMES D. RANDLES and F. RAY RISDON, Appellees |
| Court | Arizona Supreme Court |
APPEAL from a judgment of the Superior Court of the County of Pima. Wm. G. Hall, Judge. Judgment affirmed.
Mr. L J. Cox, for Appellant.
Mr Frederic G. Nave and Mr. Henry R. Merchant, for Appellees.
James D. Randles and F. Ray Risdon, members of the bar of the state of California, commenced this action against Nellie P. Covert to recover compensation for legal services claimed by them to have been rendered defendant under and by virtue of the following contract:
The trial was before a jury and at the conclusion of the introduction of evidence both the plaintiffs and defendant moved the court for a directed verdict. Plaintiffs' motion was granted and the jury rendered its verdict in their favor in the sum of $2,389.59, upon which judgment was duly entered. Thereafter, on motion by defendant for a new trial, the court ordered the judgment reduced by $356.25, leaving it $2,033.34. This sum was arrived at by calculating plaintiff's compensation at 8 per cent. on $20,000 and 5 per cent. on $8,667.51 worth of bonds stolen from defendant, the recovery being such sums plus $7,125, on which sum the plaintiffs, in accordance with the court's order, remitted their percentage of $356.25. The defendant appeals.
We shall hereafter refer to the parties as they appeared below.
There is no question but that the defendant executed the contract with plaintiffs and, although she in her answer charged plaintiffs with fraud in obtaining the contract, there was no evidence to support such allegation. Two or three days after the execution of the contract, defendant gave to the plaintiffs a description of the bonds stolen, including serial numbers, etc., and also gave them a general power of attorney to proceed to recover the bonds or the proceeds thereof. This was all done in Los Angeles. After she returned to her home in Tucson From Los Angeles she realized that her contract with plaintiffs covered the bonds impounded in the courts, and she then sent them another power of attorney excepting the bonds in the courts in California and limiting plaintiffs' power to collect to approximately $12,000 worth of bonds or their value.
Instead of discharging plaintiffs, as she had a right to do at any time and for any or no reason, being responsible in quantum meruit for services rendered until they were discharged, she continued to treat them as her attorneys but often failed and refused to cooperate with them in entire fairness. At the time of entering into the contract, there were in the United States District Court at Los Angeles, or defendant's stolen property, bonds for the sum of $23,150, with accrued interest of $1,339.13 or all told $24,489.13; and in the United States District Court for Arizona, at Tucson, $7,125, leaving $10,260.37 worth of her bonds either in the hands of the thieves or persons or concerns to whom they had been sold by the thieves. Part of this amount was located and actions brought to recover it. As a result of one of such actions there was recovered by compromise $4,178, the amount involved being $4,680.54. This compromise was effected after defendant had substituted another attorney in the case, but the evidence tends to show plaintiffs could have secured a larger sum if defendant had cooperated with them or given her consent.
There seems to be no dispute in the evidence as to the kind and amount of labor performed by the plaintiffs under the contract. When the motion for an instructed verdict was made, the question was whether such services were compensable under the contract. There being no dispute or controversy as to the services performed, the question for decision was not one of fact but one of law and, we think, one for the court to determine. Under such circumstances the court properly directed the verdict.
As we read the record, when the defendant first interviewed the plaintiffs with a view of employing them, many of the stolen bonds and securities that she was seeking to recover had been impounded in the federal courts of southern California and Arizona in connection with criminal trials being prosecuted against the parties who had stolen her property, and she gave all this information to the plaintiffs, and after a full consideration of these facts they entered into the contract, and immediately thereafter the plaintiffs took such steps as they thought advisable to recover the property.
In April, 1937, when defendant employed substitute counsel, plaintiffs immediately sought to secure a settlement with the defendant and wrote her stating that when she settled they would deliver to her the bonds and coupons that they had recovered. However, the defendant failed and refused to make any settlement. Plaintiffs then sent her property to her and thereafter brought this action on the contract for their services.
During the period of plaintiffs' employment (over a year) they appeared in court eighteen different times in behalf of defendant, and held a great many conferences with attorneys and litigants; had written many, many letters to defendant, and had recovered or assisted in recovering the bulk of her bonds in specie or cash.
The defendant's assignments based on fraud in the inception of the contract, and there are several of them, do not require consideration for the reason that the evidence fails to show any fraud. The only suggestion in that direction is that defendant was an elderly woman, in poor health, greatly worried over the loss of her property and very anxious to recover it when she made the contract. There is nothing to indicate she did not fully understand the contract, or that she did not execute it freely and of her own volition. If the contingent fee agreed upon were out of proportion to the services to be rendered, it would be the duty of the court to deny recovery on that account but not for fraud, none being shown. The percentage stipulated in the contract as plaintiffs' compensation, contingent upon recovery, is not as much as is ordinarily charged. The ordinary contingent fee for making collections is a much larger...
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...come into possession of," "to receive." Garza v. Chicago Health Clubs, Inc., 347 F.Supp. 955, 962 (N.D.Ill.1972); Covert v. Randles, 53 Ariz. 225, 231, 87 P.2d 488, 490 (1939); Swader v. Flour Mills Co., 103 Kan. 703, 704, 176 P. 143, 144-145 (1918); Black's Law Dictionary, p. 1440 (rev. 4t......
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